(1.) This appeal under section 100 of the Code of Civil Procedure is at the instance of the original petitioner-husband who had filed Hindu Marriage Petition No. 100 of 2001 against the respondent herein-wife for divorce under section 13(1) of the Hindu Marriage Act (herein after referred to as 'the Act'). The case of the petitioner in his petition is that his marriage with the respondent was solemnized on 16.12.1985. They have no issue out of the wedlock. It is alleged in the petition that immediately after marriage, the respondent had started harassing the petitioner and forcing the petitioner to live separately from his parents and brothers. The petitioner started residing separately in his house called 'Navkar' and started his dispensary in the said house at the ground floor. It is further case of the petitioner that the petitioner was physically assaulted by the respondent and the respondent was breaking and throwing various articles like watch, telephone, flower pot etc. The respondent has caused several physical injuries to the petitioner after 1988 till 1990. The respondent had thrown water pot on the petitioner and injured the petitioner. In 1993, when there was a family settlement, the petitioner constructed new house on the land came to his share and at that time, the petitioner and the respondent were residing in Vaibhav Apartment. During that period also, the respondent continued to give physical and mental cruelty to the petitioner. In the house called Navkar, which was newly made in 1993 after the family settlement, the things had gone so worse that in the month of March, 1999, the petitioner had to start residing at the second floor which comprised of one room and one toilet. Thus, for the last two and half years, the petitioner and the respondent have been staying separately and there is no cohabitation between them as husband and wife. It is the further case of the petitioner that on 15.7.99, the respondent had made assault on the petitioner and the petitioner was required to take treatment from the Surgeon. The petitioner also alleged that the respondent made allegations relating to the character of the petitioner and damaged reputation of the family of the petitioner. The respondent for this purpose went to the relatives and friends of the petitioner and create ill founded story relating to the character of the petitioner. The respondent has just crossed all the limits and has been continuously giving physical and mental cruelty to the petitioner. It is also alleged that the petitioner has satisfied the demand of the respondent to go to America though it was beyond the financial capacity of the petitioner but still there was no change in the behaviour of the respondent. The petitioner has been given threat by the respondent to involve the petitioner in false criminal cases and the petitioner has been time and again reporting such threat to the concerned Government officers. It is stated that in view of such unbearable conduct of the respondent, the petitioner was left with no option but to file the petition for divorce.
(2.) The respondent wife resisted the petition by filing reply at Exh. 24 The respondent denied all allegations made by the petitioner and further stated that the respondent is well educated with degree of B. Sc. Graduate from Mumbai and she hails from a very rich family and her father was a businessman in Mumbai as builder. She has further stated that she had lived her life with father with all comforts of life, details of which have been provided in her written statement. She has stated that in "Navkar" house, the petitioner has been running his very large dispensary and he has got many compounder and nurses in the hospital and his hospital is well occupied with Television, AC, Computer etc. For the last three generations, family of the petitioner has been in the profession of Doctor and father of the petitioner having good reputation, father of the respondent had decided for marriage of the respondent with the petitioner. However, the petitioner has not continued to act according to good culture and tradition of the Family of Doctor but had started to harass the respondent. The petitioner with the help of the mother and sister, was giving all mental and physical torture to the respondent. It is further stated that the petitioner maintained illicit relationship with one Hiteshwariben Babubhai Patni. When the respondent objected to such illicit relationship of the petitioner, mother of the petitioner defended the petitioner by saying that the person like Doctor could have two wives but the respondent could not bear such illicit relationship of the petitioner and, therefore, objected to such relationship, therefore, the respondent was threatened that if the respondent would continue to object, she would be done away with. The respondent has then given further details about high-handed behaviour of the petitioner and his mother and sister and it is then stated that on 22.8.2001, the petitioner falsely informed the respondent that the father of the respondent was not keeping well and the respondent was immediately called. On the basis of such falsehood, the respondent was sent to Mumbai and when the respondent was at Mumbai, the respondent was served with the notice of divorce petition by registered post. After receipt of such notice, when the respondent and her father came to Rajkot, they were not allowed to enter the house and, therefore, the father of the respondent had to stay in Rishi Hotel and they went to the Court. It is further alleged that thereafter, on 22.12.2001, the respondent made written complaint to the Commissioner of Police against the petitioner and his family members as well as against Hiteshwariben Babubhai Patni. It was registered as CR No. 416 of 2001 on 22.12.2001 under section 498A, 502, 504,323 and 114 of the Indian Penal Code. The petitioner and other accused were arrested and then released on bail. However, since the name of Hiteshwariben was deleted, the respondent had to file the special criminal application before the High Court and before the High Court, the police tendered apology for deleting the name of Hiteshwariben and thereafter, Hiteshwariben was added in the complaint and was arrested and then released on bail. The respondent has then given further details about the continuance of cruel treatment from the petitioner and further stated that since the petitioner was not providing maintenance, the respondent had to file special civil suit no. 96 of 2002 under section 18 and 23 of the Hindu Adoption and Maintenance Act for permanent alimony from the petitioner wherein the petitioner was ordered to pay Rs.15000.00 per month by way of interim alimony by order dated 28.10.2002. Against that order, special civil application no. 4462 of 2002 was filed by the petitioner before the High Court wherein it was ordered that till the main petition is decided, the petitioner should pay Rs.10,000.00 per month to the respondent. It is alleged by the respondent that it is the petitioner who deserted the respondent and because of such desertion, the respondent has to stay separately from the petitioner and the petitioner has tried to defeat all rights of the respondent to live in matrimonial home with the petitioner. Respondent has also alleged that because of such behaviour on the part of the petitioner, the respondent has been residing separately for a period of about 17 years but she is still ready and willing to join the matrimonial home forgetting all the past behaviour of the petitioner.
(3.) On the basis of the above pleadings, the learned trial Judge framed the issues at Exh. 28 and two of the main issues are as under: